Partnerships

Country Reports: Sub-Saharan Africa

Cameroon

On December 22, 1999, the President of the Republic of Cameroon signed a new law affecting NGOs, which had been passed by the National Assembly in November. This new law, No. 99/014, regulates NGOs in Cameroon, known in French as “Organisations Non Gouvernamentales.” NGOs or ONGs are now subject to a special regime, which requires them to enter into an agreement (agrément) under which they become entitled to pursue aims that are in the public interest (intérêt général) and receive certain tax benefits.

The new law is interesting for several reasons:

In creating the new regime for NGOs, the law also creates a separate and distinct legal person in Cameroon, which is different from existing “associations reconnues d’utilité publique” or ARUPs (public utility associations) (recognized by article 11 of the 1990 Law on the Freedom of Association);

The new law for the first time recognizes a foundation-like entity for Cameroon, the so-called “ONG unipersonelle;” see article 5 of the Law on NGOs of 1999.

The law sets up a “Commission” to grant agreements and oversee the activities of NGOs. Under article 7 of the new law, the NGO Commission is supposed to be comprised of government representatives as well as representatives of civil society (“la société civil”); the exact composition of the Commission is not spelled out in the legislation but is supposed to be dealt with in a government decree.

These are rather important changes in the legislative landscape in Cameroon, though their precise effect on Cameroonian civil society will need to await the application of the law over time.

Background to the new legislation. The development of new legislation affecting associations in Cameroon has long been on the government’s agenda. Despite the revamping of the Associations Law as recently as 1990, the government felt that certain associations – those involved in development work – needed to be regulated by a special regime that recognizes their special characteristics and takes into account their special obligations to the stakeholders they serve.

In 1996 ICNL was asked to provide technical assistance to the government to assist with the development of the new legislation, the aim of which has been to provide a more conducive legal environment for development organizations in the country. Mr. George Minang, an employee of the World Bank in Yaounde who died tragically in the fall of 1999, spearheaded the effort to provide international comparative experience as the government proceeded with the drafting process.

ICNL has provided the Cameroonian government with many documents from other countries dealing specifically with the issues raised by the government. In-person and written comments were provided on all of the many drafts leading up to the final version of the law. The government also held at least one workshop in Yaounde to seek NGO input into the last draft preceding the final one. Although the government was clearly grateful for the technical assistance, the law definitely remains a law that reflects the views of the people of Cameroon, and, in particular, those of the government.

Accomplishments of the new law. The new NGO Law accomplishes some important new things that should create a better enabling environment for civil society. In particular, the creation of the NGO Commission, with civil society representation, should be conducive to furthering the development of NGOs in Cameroon. This sort of oversight body is recommended in the World Bank Handbook on Good Practices for Laws Affecting Nongovernmental Organizations (Discussion Draft 1997). The Handbook discusses an oversight body that is similar to the Charity Commission of England and Wales, after which this new NGO Commission in Cameroon is clearly patterned.

The other notable accomplishment of the new law is the creation of a new foundation-like entity for Cameroon. This entity, called an “association unipersonnelle” is given special treatment under the new law – it is permitted to be given an agreement without the mandatory three year waiting period that applies to other NGOs. Having a foundation-like legal form is important for development of a vibrant third sector in any country.

Deficiencies of the new law. Despite these accomplishments, however, it appears that the new law could benefit from a few amendments to clarify its scope and to further enhance the enabling environment for civil society in Cameroon.

Although the new NGO Commission has been created, the new legislation fails to be precise about the its composition, the manner in which the civil society representatives are to be selected, etc. It would be useful for the decree, when it is issued, to be precise about these aspects of the Commission.

More precision is also necessary about exactly how a one-person association is supposed to function.

The term "mission d'intérêt général" (public purpose) as used in the new law, is confusing when set against the public utility classification of the 1990 law. Apparently activities that are intended to fulfill a public purpose are not necessarily required to be the principal activities of an ARUP (public utility association) whereas they are required to be the principal activities of an NGO. However, article 32 of the 1990 Law on Freedom of Association states that: "Toute association dont la contribution effective est déterminante dans la réalisation des objectifs prioritaires du gouvernment peut…être reconnue d'utilité publique"; and article 3 of the new law states that: "Les missions d'intérêt général…sont définies en fonction des priorités fixées par les pouvoir publics." Therefore, it seems that the main purpose and activities for both NGOs and ARUPs should be to pursue purposes and activities that are in accordance with the priorities determined by the public authorities and hence meet the general meeting of being in the public interest. Without resolving this confusion, the new legislation makes it difficult for NGOs to determine whether they must register as NGOs if they already qualify as ARUPs.

It is also not clear whether associations, including ARUPs, that do not enter into an agrément will be able to engage in economic activities and to remunerate their employees. These benefits are provided for under article 17 of the new law, but the 1990 law is silent on these issues.

Despite the generally comprehensive approach of the new law, it does not recognize the necessity of including rules for accountability and transparency. It might be useful to add such rules to address issues such as the composition of the board of directors of an NGO and required reporting standards. Incorporation of such provisions is necessary to avoid misuse of grant monies by NGOs, possibilities for corruption, and tax fraud. Such rules would help the government of Cameroon to tackle these problems in a straightforward and satisfactory manner.

One of the difficulties that new associations doing development work will have is that an agreement is not available until an organization has been in existence for three years (unless it is an “association unipersonnelle”). This may make it difficult for some NGOs to survive, in particular because the tax benefits granted under article 17 are not available until an agreement has been granted.

All in all, the new law seems to be a step forward, event though certain aspects of it need clarification and elaboration. As the implementation of the law proceeds, ICNL will continue to monitor developments with the legislative environment in Cameroon.

Kenya

See also in this issue of IJNL's Partnerships Section, a report on Kenya.

Sierra Leone

The budget for 2000, which was presented to the parliament on 26 November 1999, includes a proposal to examine the continued grant of tax exemptions to NGOs.

(Tax News Service, 24 January 2000)

South Africa

The budget for 2000, which was presented to the parliament on 23 February 2000, includes proposals to:

extend the range of nonprofit organisations to which donations can be made that qualify for income tax relief. Allowable donations can now be made to pre-primary and primary schools, children's homes and old people's homes, and approved public benefit oganisations (PBOs) whose activities are directed towards the prevention and relief of AIDS and the care of destitute old people;

limit the allowable deduction for income tax purposes of individual and corporate donations to the greater of 5% of taxable income or SAR 1,000;

review and revise the existing definition of PBOs;

allow PBOs to engage in trading activities to a limited degree;

impose sanctions, including withdrawal of tax exemption and monetary penalties, for PBOs that breach the conditions for tax exemption.

(Budget 2000 Review, February 2000)

Tanzania

Framework Legislation:

The NGO Policy Process is moving forward. The Draft NGO Policy was adopted by the NGOs and other stakeholders at the final National Workshop, held in Dar Es Salaam, November 30-December 1, 1999. It has been submitted to the Government for approval, after which the drafting of the new legislation will begin. For further information on the policy process, see IJNL. Vol. 1, issue 1, or contact Mr. Marcel Katemba in the office of the NGO Coordinator, Mr. E.N. Mushi, marcelkat@hotmail.com.

Zimbabwe

On 21 October 1999 the Minister of Finance announced the budget proposals for 2000. These include a new annual deduction for income tax purposes of up to ZWD 10 million for donations towards the construction, maintenance and operation of government and mission hospitals, including the provision of equipment and drugs. Allowable deductions are limited to donations approved by the Minister of Health and Child Welfare.